Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BA320255 Robert J. Perry, Judge.
Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant Alex Hernandez.
Mark S. Givens, under appointment by the Court of Appeal, for Defendant and Appellant Oscar Mejia.
David M. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant Luis DeJesus.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Jaime L. Fuster, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
A jury convicted defendants and appellants Alex Hernandez (Hernandez), Oscar Mejia (Mejia) and Luis DeJesus (DeJesus) (collectively, defendants) of various crimes arising from their participation in an auto theft ring that operated by obtaining a vehicle identification number (VIN) for a target vehicle, then accessing a General Motors database to obtain a key code and make a duplicate key for the vehicle. The vehicles usually were stolen at night from the owners’ residences.
On appeal, defendants contend that (1) the trial court improperly admitted evidence of an uncharged crime, i.e., that Mejia possessed the key to a stolen truck; (2) there was insufficient evidence to sustain their convictions; (3) the trial court erred by sentencing defendants to the upper term; (4) the trial court violated Penal Code section 654 by imposing consecutive sentences on DeJesus’ convictions for grand theft auto and unlawful VIN activity relating to the same vehicle; (5) the restitution fines imposed by the trial court were unauthorized; and (6) the presentence credit awarded to Mejia and DeJesus was erroneous or improperly recorded on the abstracts of judgment. We conclude that the last two of these arguments have merit, and order the judgments modified accordingly. In all other respects, we affirm.
All statutory references are to the Penal Code unless stated otherwise.
BACKGROUND
Defendants were three of six defendants at trial. The other three defendants—Chris Laney, Osman Garcia and Carlos Ayala—are not parties to this appeal. For purposes of brevity, we set forth only the facts established at trial relevant to the issues on this appeal.
1. Key Codes and Downey Pontiac
Each vehicle manufactured by General Motors (GM) has a VIN, which is a unique 17-digit identifying number for that particular vehicle. GM also assigns each vehicle a key code, which is associated with and accessed using the vehicle’s VIN. GM maintains a database of key codes that is accessible to GM dealerships through a private computer network called GM Dealer World. The key code for a particular vehicle permits any lock shop or locksmith with the proper equipment to make a duplicate key for the vehicle. Dealerships most often use key codes to make duplicate keys for customers who have lost their keys, or to make duplicate keys for a dealership’s sales or service personnel who have lost the keys to, or locked the keys inside, a car while the car is on the lot. GM makes a record of each request for a key code and is able to audit key code requests. The GM Dealer World website is password protected. The site states that key code information is proprietary and instructs dealership personnel to require customers to document their ownership of the vehicle prior to divulging the key code.
Downey Pontiac GMC Buick (Downey Pontiac) was a GM dealership located in Downey, California. Chris Laney worked there for 11 years and was the foreman of the Service Department. Laney had access to customer key codes. The dealership had the equipment to cut new keys. The dealership’s policy was to obtain the customer’s driver’s license and registration for the relevant vehicle prior to making a new key, and to log all keys made for customers. Employees were not required to log keys made for an employee who had lost a key in the Service Department or locked the key in the car. There were three computers with access to GM Dealer World located in the Service Department; there was another computer with access in the break room.
2. The Downey Pontiac Surveillance
In late 2005 and early 2006, members of the Orange County Auto Theft Task Force (OCATT) and the Los Angeles County Taskforce for Regional Autotheft Prevention (TRAP) were investigating thefts of GM vehicles. Henry Jackson, an investigator contracted to work with General Motors Global Security, generated and provided to police audits of all key code requests from Downey Pontiac beginning September 1, 2005. Long Beach Police Department Detective Joseph Starbird, assigned to TRAP, determined that from September through December 2005, Downey Pontiac had requested key codes for 39 vehicles that subsequently were reported stolen.
In March 2006, with the consent of Downey Pontiac’s owner, OCATT installed video surveillance devices and computer monitoring software at Downey Pontiac that, among other things, generated hourly reports of key code requests made on Downey Pontiac computers. Based on the information generated in those reports, OCATT and TRAP began to surveil and place tracking devices on vehicles that were the subject of key code requests.
In June 2006, OCATT executed a search warrant at Downey Pontiac. Among other things, police recovered a 16-page document from Chris Laney’s tool box. The document contained a two-column list of partial VINs and matching key codes. Laney admitted to requesting approximately 20 key codes and giving them to a person he identified as Adam Sanchez, who worked at another dealership.
3. DeJesus
a. Counts 6 and 7—Attempted Grand Theft
In April 2006, Jaime Villar lived on Adele Avenue in Whittier. He owned a 2003 Chevrolet Tahoe. Although he usually parked his vehicle in his driveway, Villar testified that on the relevant night he had parked the vehicle on the street in front of his house. To start the Tahoe’s engine, one needed both the key in the ignition and to push the button on a remote device. The key alone would open the door, however. Villar had not given permission to anyone to take his vehicle.
In April 2006, Omar Gutierrez lived on Lyle Avenue in Whittier, less than one mile from Jaime Villar. He owned a black 2004 Chevy Avalanche. He had possession of both keys to his vehicle, and had given no one permission to move his car from his residence. He normally parked the Avalanche in his driveway.
On the night of April 23, 2006, TRAP detectives were to surveil both Villar’s Tahoe and Gutierrez’s Avalanche. At approximately 10:00 p.m., while en route to scout the location of Gutierrez’s Avalanche on Lyle Avenue, members of the surveillance team saw a purple Honda that was on a list of suspect vehicles. The Honda passed the officers’ van heading in the opposite direction. California Highway Patrol (CHP) Investigator Michael Maletta, a member of the TRAP surveillance team, identified DeJesus both from a photograph and in court as the driver of the Honda. Los Angeles Police Department (LAPD) Detective Kevin Romine also saw and identified DeJesus. The surveillance team turned their van around to go the same direction as the Honda, which was heading in the direction of Villar’s home on Adele Avenue. The officers saw the purple Honda turn onto Adele Avenue.
Later that night, Detective Romine was conducting surveillance of Gutierrez’s black Avalanche on Lyle Avenue. He saw a purple Honda, with the same license plate number as the Honda he had seen earlier in the evening, turn onto Lyle Avenue. The Honda went to the end of the street and made a U-turn, then parked in front of a house. A large man wearing black sweats got out and approached the Avalanche. The man opened the door and got in the driver’s side of the vehicle, sat in it briefly, then got out and walked back to the Honda, where he appeared to speak to the driver of the Honda. He returned to the vehicle, sat in it briefly again, and then again went to speak to the driver of the Honda. He got back in the Avalanche one last time, stayed there briefly, then got back in the Honda. The Honda drove away. Detective Romine radioed the other members of the surveillance team and told them what he had seen.
L.A. Sheriff’s Department Detective Michael Carnakis was conducting surveillance of Villar’s Tahoe on Adele Avenue. At approximately 12:30 a.m., Detective Carnakis received information regarding a purple Honda on the police radio. He then saw a purple Honda driving south on Adele. There appeared to be two people in the Honda. The Honda passed Detective Carnakis, then made a three-point U-turn and stopped in the middle of the street in front of Villar’s house. A man got out of the passenger side of the Honda and walked to Villar’s Tahoe. The man approached the driver’s side door of the Tahoe and opened it. It appeared he did so with a key. He got in the vehicle and began to manipulate something in the ignition area. The headlights of the Tahoe began flashing. The man got out of the Tahoe, went back to the Honda and had a discussion with the driver, and then got back in the Tahoe and attempted to start it five or six more times. The lights flashed again, but the car did not start. The man got out of the Tahoe and got back in the Honda, which drove away. The license plate of the Honda seen by Detective Carnakis on Adele Avenue matched the license plate of the Honda seen by Detective Romine on Lyle Avenue.
b. Counts 14 and 15—Grand Theft and Unlawful VIN Activity
In March 2006, Joel Robles lived on Van Ness Avenue in Los Angeles. He was the owner of a 2003 Cadillac Escalade. The night of March 14, the Escalade was parked in Robles’s driveway. When Robles got up to go to work on March 15, the Escalade was gone. There was no broken glass or debris where the car had been parked. Robles had the only key to the Escalade in his possession. He had never taken it to Downey Pontiac.
At approximately 3:00 a.m. on the morning of March 15, 2006, LAPD Detective Paul Marenko was conducting surveillance of Robles’s Escalade. Police had placed a tracking device on the vehicle. Detective Marenko saw a blue Toyota Highlander pull up near the Escalade with its headlights turned off. A man wearing a black baseball cap got out of the passenger side of the Highlander and, appearing to use a key, got into the driver’s seat of the Escalade. The motor started, and the Escalade pulled out of the driveway. The Escalade followed the Highlander away from the location. Detective Marenko identified DeJesus as the driver of the Highlander.
On March 22, 2006, police tracked Robles’s Escalade to Croesus Avenue in Los Angeles. Detective Starbird observed the Escalade parked behind a house. DeJesus was present. Detective Starbird observed a circular hole in the windshield where the dashboard VIN plate would be. DeJesus and two other individuals removed and replaced the windshield. Detective Starbird photographed the process. The Escalade was recovered in April 2006. The license plates and VIN information on the Escalade had been changed.
4. Mejia
In May 2006, Maricela Brown owned a green 2004 Chevy Avalanche. She last saw the vehicle when she parked it across the street from her residence; when she came out later, the vehicle was gone. She had not given anyone permission to take the vehicle.
On May 30, 2006, a TRAP surveillance team was conducting surveillance of a blue Dodge Caravan that was registered to defendant Hernandez. The van was parked near an auto dealership at Jefferson Boulevard and Flower Street in Los Angeles. Victor Alas came out of the dealership and got into the van. Detectives followed the van to various locations as it traveled generally westward. At one point, the van stopped at the Wilshire Inn, a hotel on Third Street just east of Vermont. Mejia got into the van. The van went into a neighborhood near the intersection of Pico Boulevard and Arlington Avenue in central Los Angeles. When the van reappeared, it appeared to be traveling with a green Chevy Avalanche. The Avalanche was being driven by Mejia. The license plates on the Avalanche matched those on Maricela Brown’s Avalanche.
Victor Alas was charged in the indictment as a coconspirator with defendants, but he was not a defendant at trial.
The van and the Avalanche both stopped at a gas station. Officers then followed the Avalanche east on the 10 freeway to Alameda Street, where the Avalanche drove into an auto glass shop. After approximately 45 minutes to one hour, the Avalanche proceeded south on Alameda to First Street. LAPD Detective George Molina, acting on information he received on the radio, located the Avalanche minutes later parked on the street, across from the blue Dodge Caravan. The license plates on the Avalanche had been removed and replaced with paper dealership plates, such as those on newly purchased vehicles. There was also blue tape around the upper edge of the windshield. The VIN on the dashboard plate did not match the VIN reflected in DMV records.
On May 30 or 31, 2006, Long Beach Police Department Detective Sergeant James Williams was conducting surveillance at the Wilshire Inn. In the parking lot, Sergeant Williams saw a Ford F-250 pickup truck that had paper dealer plates on it. The pickup had been stolen from the home of Scott Churchill in Huntington Beach the night of May 21.
On May 31, LAPD Officer Stuart Michelson, who was on loan to TRAP, was present when patrol officers conducted a traffic stop of a Chrysler Sebring being driven by Mejia. Victor Alas was a passenger in the vehicle. The patrol officers removed a single non-factory key from Mejia’s pocket. Police later used the key to start Churchill’s stolen Ford pickup.
The Sebring that Mejia was driving was impounded and inventoried. The car contained a rental agreement for the Sebring in the name of Oscar Boldo. In the trunk, police found some socket drives; a cordless hand drill; and a blue nylon gym bag containing screwdrivers, hammers, drill bits and vice grips. One of the drill bits had pieces of metal stuck on it that proved to be two rosette rivets, the sort used by GM to affix VIN plates to the dashboard of GM vehicles.
5. Hernandez
a. Count 13—Unlawful VIN Activity
In April 2006, Victor Avina lived in Sylmar and owned a 2005 Chevy 2500 pickup truck. On the evening of April 11, he parked the truck in his driveway. The next morning, it was gone.
Avina’s truck was under surveillance by a TRAP surveillance team when it was stolen. Los Angeles County Sheriff’s Department Detective Grady Miles saw a silver Daewoo automobile pass his location and make a u-turn at the end of the street, which was a cul de sac. The car slowed down as it passed Avina’s house; it then turned left onto an adjacent street and out of Detective Miles’s view. Twenty minutes later, the Daewoo reappeared, with the windows rolled down and its headlights turned off. The driver of the Daewoo got out of the car, and the passenger slid into the driver’s seat. The man who had gotten out of the car walked up to Avina’s pickup, opened the door and got into the driver’s seat. The man let the pickup roll out of the driveway before starting it. The truck’s headlights came on, but the man quickly turned them off. Both vehicles left the area. Detective Miles identified Carlos Ayala, a codefendant at trial, as one of the men. Hernandez testified that the Daewoo belonged to his father.
Police had placed a tracking device on Avina’s truck. On the morning of April 13, 2006, Officer Michelson followed Avina’s truck to an address on Navarro Avenue in Pasadena that was associated with Hernandez’s brother, Jovel. Avina’s truck was driven to the rear of the lot, where there was a separate residence. A silver Daewoo arrived and parked near the truck. A man, later identified as Hernandez’s brother Mario, took a slab of granite out of the Daewoo and put it in the bed of the truck. Mario Hernandez then removed the license plates from the truck and put on paper dealer plates. He then backed the truck out of the driveway and parked it on the street.
Hernandez’s brother Jovel was charged in the indictment as a coconspirator with defendants. He was not a defendant at trial.
Later that day, Avina’s truck was again moved to the rear of the lot on Navarro Avenue. Officer Michelson observed Mario Hernandez use a cutting tool to cut the rubber around the windshield. Hernandez then arrived and joined Mario. They removed the windshield from Avina’s truck. A Toyota pickup truck carrying windshields in its bed arrived; the driver of the Toyota sat in Avina’s truck while Hernandez and Mario did something with the front of the truck. After they finished installing a new windshield, Hernandez went into the rear house carrying a small black canvas tool bag.
On June 20, 2006, police executed a search warrant at Hernandez’s residence on West Hammond Street in Pasadena. Among other things, police recovered a cream-colored shoulder bag from behind the sofa that contained two keys, a die stamp kit, a cordless drill, an exacto knife and other items that could be used in a VIN-switching operation. In a plastic grocery bag on the patio, police recovered paper dealer plates from Pasadena Ford and miscellaneous license plate frames. In an upstairs bedroom that appeared lived in, police recovered two driver’s licenses, U.S. and Honduran passports, and a certificate of naturalization in Hernandez’s name.
b. Count 18—Receiving Stolen Pickup Truck
In February 2006, Kent Gilcrease lived on East Hillcrest Boulevard in Monrovia. He owned a gold 2004 Chevy 2500 pickup. On February 27, he parked the truck in front of his house under a streetlight. Less than half an hour later, he discovered the truck was missing. When he later got the truck back, the license plates were missing.
Michael Perrette lived on West Hillcrest Boulevard in Monrovia, less than one-half mile from Gilcrease. He owned a black 2005 Chevy 2500 pickup. He parked his truck at his residence. After receiving a telephone call from police, he saw that his truck was missing.
On February 27, 2006, CHP Officer Michael Pimental, a member of OCATT, went to Monrovia to contact people he believed might be victims of an auto theft ring. At 7:30 p.m., Officer Pimental drove by Perrette’s house on West Hillcrest, where he saw Perrette’s black pickup truck. A minute or so later, he drove by Gilcrease’s house on East Hillcrest, where he saw Gilcrease’s gold pickup truck. Police placed a tracking device on Gilcrease’s gold pickup.
Later that evening, Officer Pimental received a telephone call from another member of OCATT, Huntington Beach Police Department Detective Jonathan Haught. Acting on information he received from Detective Haught, Officer Pimental began tracking Gilcrease’s gold pickup, which was heading westbound on the 210 freeway. Officer Pimental tracked the gold pickup to Eucalyptus Lane in Pasadena. He saw that Perrette’s black pickup, which he had seen earlier in Monrovia, also was there. Eucalyptus Lane was approximately 200 yards away from Hernandez’s residence on West Hammond Street.
CHP Sergeant Ronald Brame also was assigned to OCATT. At approximately 10:00 p.m. on February 27, 2006, Sergeant Brame went to both Perrette’s and Gilcrease’s homes in Monrovia; neither Perrette’s black pickup nor Gilcrease’s gold pickup was at those locations.
Sergeant Brame then went to the area of Eucalyptus Lane in Pasadena, where members of OCATT set up a surveillance. After approximately 12 to 14 hours, both Sergeant Brame and Officer Pimental saw the gold truck move and head south on Kirkwood Avenue. A blue Dodge Caravan was following the gold truck. The gold truck passed Officer Pimental’s observation post. Officer Pimental identified Hernandez as the person driving the gold truck, both in a photo that same day and again in open court.
Sergeant Brame tracked Gilcrease’s gold truck to another location in Los Angeles, and then returned to the surveillance at Eucalyptus Lane. There, he saw Perrette’s black truck move. He followed the truck less than one mile to 1247 North Raymond Street. Sergeant Brame saw one person get out of the driver’s side door of the pickup. Sergeant Brame subsequently identified that person from a photograph and in court as Hernandez. Hernandez’s brother Jovel then lived at 1247 North Raymond Street; Hernandez’s father lived next door.
B. The Defense Case
1. DeJesus
Detective Carnakis was the designated report writer and wrote the report concerning Detective Romine’s observations of the theft of Gutierrez’s Avalanche on April 23 and 24, 2006. (See Background, Part A.3.a, ante.) Detective Carnakis did not personally participate in that surveillance. Although Detective Romine had testified during the prosecution’s case-in-chief that the man who allegedly had attempted to steal the Avalanche had gotten into the vehicle, the report authored by Detective Carnakis did not state that the man had gotten into the car. Instead, the report stated that the key might not have worked in the door. Detective Carnakis testified that, when he discussed the surveillance with Detective Romine, he thought that Detective Romine believed the man had not gotten into the car. Detective Romine testified that he did not remember telling this to Detective Carnakis, and that he had testified to what he had seen.
2. Hernandez
On February 28, 2006—when Sergeant Brame identified Hernandez from a photograph as the person who had driven Gilcrease’s stolen truck—Detective Pimental had shown Sergeant Brame only one photograph and had told Sergeant Brame that the photo showed Hernandez. (See Background, Part A.5.b, ante.)
On May 9, 2006, Los Angeles Deputy Sheriff Andrew Turpen observed three men working on a suspected stolen Escalade on Howard Street in Pasadena. One of those three men was Hernandez’s brother, Jovel. Jovel had been carrying a green duffel bag when police detained him. Jovel had been working near the Escalade’s VIN plate with a hand tool.
Hernandez testified on his own behalf. Hernandez worked full time as a dump truck driver for a man who owned several dump trucks. He had lived on West Hammond Street for about 10 years. Hernandez had four brothers—Israel, Mario, Jovel and Hector. Several of the prosecution’s surveillance photographs showed his brothers Jovel and Mario. Hernandez denied driving Gilcrease’s stolen gold truck on Eucalyptus Lane, although he lived nearby. His brother Jovel used to live on Raymond Street in Pasadena; Hernandez used to visit there. Hernandez’s father lived next door to Jovel. Sometime after February 2006, Jovel moved from Raymond Street to Navarro Avenue. Hernandez’s brothers sometimes stayed overnight at Hernandez’s house. He never saw the items seized by police from his residence when they executed the search warrant. The blue Dodge Caravan was Hernandez’s for about a week; he then sold it to his brother Jovel. Jovel, however, did not pay the full purchase price and never registered the van in his own name. Hernandez had picked up the van from a police impound lot.
In 2000, Hernandez had been arrested with his brother Mario in a stolen car. Hernandez also owned a red Ford Ranger pickup truck. The silver Daewoo was his father’s car. Hernandez identified his brother Mario as driving the Daewoo in a surveillance photograph. Hernandez’s red Ford Ranger also appeared in the same photograph. In the photograph, Jovel was in the passenger seat of the truck, but Hernandez testified that he was unable to identify the driver. Hernandez admitted that he was in several of the surveillance photos. Eucalyptus Lane was blocks away from his house on West Hammond Street.
C. Procedural Background
Defendants and eight others were charged in an amended indictment with conspiracy to commit a crime (§ 182, subd. (a)(1)) (count 1), with the alleged overt acts relating to accessing key codes for GM automobiles and then stealing and VIN-switching those automobiles. In addition to conspiracy, DeJesus was charged with two counts of attempted grand theft auto (§ 664/487, subd. (d)(1)) relating to the attempts to steal Gutierrez’s Avalanche (count 6) and Villar’s Tahoe (count 7), and one count each of grand theft auto (§ 487, subd. (d)(1)) (count 14) and unlawful VIN activity (Veh. Code, § 10802) (count 15) with respect to Robles’s Escalade. Mejia was charged with receiving stolen property (§ 496d, subd. (a)) (count 2) and unlawful VIN activity (Veh. Code, § 10802) (count 3) with respect to Maricela Brown’s stolen Avalanche. Hernandez was charged with one count of unlawful VIN activity (Veh. Code, § 10802) with respect to Avina’s pickup (count 13), and one count of receiving stolen property (§ 496d, subd. (a)) with respect to Gilcrease’s pickup (count 18). The indictment also specially alleged that DeJesus had one prior felony vehicle theft conviction (§ 666.5, subd. (a)), and that the value of the property stolen pursuant to the conspiracy charged in count 1 exceeded $100,000 (§ 1203.045, subd. (a)).
The case proceeded to trial against six of the eleven people named as coconspirators in the indictment, including defendants. At the close of the People’s case in chief, the trial court granted defendants’ motion to dismiss the section 1203.045 allegation. The jury was unable to reach a verdict on count 18, charging Hernandez with receiving Gilcrease’s stolen pickup. The trial court declared a mistrial as to that count and, on the People’s motion, dismissed the charge. On all other counts, defendants were convicted as charged.
The jury also was unable to reach a verdict as to codefendant Chris Laney.
DeJesus admitted his prior vehicle theft conviction. The trial court sentenced DeJesus to state prison for five years and eight months, consisting of the upper term of four years on count 14 as the base term, plus consecutive terms of eight months each on counts 1 and 15 and two months each on counts 6 and 7. The trial court also imposed a $10,000 restitution fine; a $10,000 parole revocation restitution fine, stayed; and a $20.00 court security fee. DeJesus was given 494 days of presentence credit, consisting of 334 days of actual custody and 160 days of conduct credit.
The trial court sentenced Mejia to state prison for three years and eight months, consisting of the upper term of three years on count 3 as the base term and a consecutive term of eight months on count 1. Mejia’s sentence on count 2 was stayed pursuant to section 654. The trial court also imposed a $25,000 restitution fine; a parole revocation restitution fine in the same amount, stayed; and a $20 court security fee. Mejia was given 517 days of presentence credit, consisting of 354 days of actual custody and 172 days of conduct credit.
The trial court sentenced Hernandez to state prison for three years and eight months, consisting of the upper term of three years on count 13 as the base term and a consecutive term of eight months on count 1. The trial court also imposed a $25,000 restitution fine; a parole revocation restitution fine in the same amount, stayed; and a $20 court security fee. Hernandez was given 62 days of presentence credit, consisting of 42 days of actual custody and 20 days of conduct credit. Defendants timely appealed.
DISCUSSION
A. Mejia’s Evidentiary Argument—Uncharged Offense
(Churchill’s Stolen Ford Pickup)
1. Relevant Background
The People sought to introduce evidence at trial that, when Mejia was detained and searched after a traffic stop, he was in possession of a non-factory key that was later used to start Scott Churchill’s stolen Ford F-250 pickup. The pickup was discovered by police in the parking lot of the Wilshire Inn, a location where Mejia was observed. The theft of Churchill’s pickup was not charged in the indictment.
See Background Part A.4, ante.
Before trial commenced, counsel for Mejia objected to evidence relating to the pickup because there was no foundation that the Ford had been stolen “other than a hearsay basis.” The prosecutor explained that the evidence was relevant to rebut Mejia’s potential defense that he did not know that Maricela Brown’s green Avalanche—which police had seen Mejia driving—was stolen. The trial court observed that the evidence was relevant to Mejia’s knowledge in that “it certainly show [sic] he would have some knowledge aspect if he’s associated with a stolen car and he has got a key to it, the stolen car, at a time when he’s alleged to be a member of a conspiracy involving the wrongfully obtaining of keys for General Motors cars.” The trial court overruled the objection.
During trial, the prosecutor informed counsel for Mejia that the People would call the owner of the stolen Ford pickup, Scott Churchill, to testify. Defense counsel objected on the ground that evidence relating to the Ford was improper character evidence under Evidence Code section 1101, subdivision (a), and that the evidence was more prejudicial than probative under Evidence Code section 352. The prosecutor argued that the evidence was relevant to Mejia’s intent. Defense counsel stated that, although the evidence would be proper rebuttal evidence, Mejia did not anticipate putting on a defense, and the evidence was not proper to show plan, intent or knowledge under Evidence Code section 1101, subdivision (b).
Counsel also objected that the prosecutor had not given 30-days notice of his intent to offer the evidence and that Churchill was not on the witness list. The trial court found that the lack of notice was “not a significant issue” under the circumstances. Mejia notes the trial objections, but does not specifically pursue these contentions on appeal.
The trial court overruled the objection. The trial court stated, “Given the nature of this case and the possible issue of your client’s knowledge of whether or not he was involved with stolen vehicle activity I think it’s very close to what was going on. The fact that it is a Ford and not a Chevy is something that he can argue to the jury as to whether or not it has weight. [¶] I think the fact that your client had a key that fit a stolen truck on his person at the time of his arrest is highly incriminating evidence and something the jury should hear.”
2. Standard of Review and Applicable Principles
We review for abuse of discretion the trial court’s rulings under Evidence Code sections 1101 and 352. (People v. Rogers (2006) 39 Cal.4th 826, 862-863.) Under Evidence Code section 1101, subdivision (a), evidence of a criminal defendant’s uncharged crimes or other “bad acts” is inadmissible solely to prove that the defendant had a predisposition to commit the crime charged. (People v. Rogers, supra, 39 Cal.4th at p. 862; People v. Malone (1988) 47 Cal.3d 1, 17.) Evidence Code section 1101, subdivision (b), however, provides that such evidence may be admissible to prove another issue in the case, such as the defendant’s intent or guilty knowledge. (People v. Rogers, supra, 39 Cal.4th at p. 862; People v. Malone, supra, 47 Cal.3d at pp. 17-18.) “[T]o to be admissible, evidence of other crimes must be relevant to some material fact in issue, must have a tendency to prove that fact, and must not contravene other policies limiting admission, such as Evidence Code section 352.” (People v. Malone, supra, 47 Cal.3d at p. 18; see generally, 2 Jefferson’s California Evidence Benchbook (2008) § 33.21, pp. 742-743.)
Evidence Code section 1101 provides:
When a defendant’s criminal intent is disputed, a sufficiently similar prior act is admissible to show that the defendant acted with the requisite intent. “The least degree of similarity between the crimes is needed to prove intent. [Citation.] [T]he doctrine of chances teaches that the more often one does something, the more likely that something was intended, and even premeditated, rather than accidental or spontaneous.” (People v. Steele (2002) 27 Cal.4th 1230, 1244.) Evidence of prior acts also may be admissible to show guilty knowledge, including a defendant’s knowledge of the stolen character of property to prove a charge of receiving stolen property. (People v. Pic’l (1981) 114 Cal.App.3d 824, 856, disapproved on another ground in People v. Kimble (1988) 44 Cal.3d 480, 496, fn. 12; People v. Harris (1977) 71 Cal.App.3d 959, 964-965.)
“Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) “‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.”’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638.) “Evidence is prejudicial within the meaning of Evidence Code section 352 if it encourages the jury to prejudge defendant’s case based upon extraneous or irrelevant considerations.” (People v. Rogers, supra, 39 Cal.4th at p. 863.)
3. The Trial Court Did Not Abuse Its Discretion
Mejia argues that the evidence relating to Churchill’s stolen Ford F-250 did not fall within the scope of Evidence Code section 1101, subdivision (b) because there was no “logical nexus” between the stolen Ford and Mejia’s knowledge of or agreement to join the conspiracy charged in the indictment. The primary relevance of the evidence, however, was not necessarily to prove the conspiracy charge, but to prove the crime of receiving stolen property charged in count 2.
Count 2 charged Mejia with receiving Maricela Brown’s stolen Avalanche in violation of section 496d, subdivision (a). To convict Mejia of that charge, the People were required to prove that Mejia knew Brown’s Avalanche “to be stolen or obtained [in a manner constituting theft or extortion] . . . .” (§ 496d, subd. (a).) “Although receiving stolen property has been characterized as a general intent crime, the second element of the offense is knowledge that the property was stolen, which is a specific mental state.” (People v. Russell (2006) 144 Cal.App.4th 1415, 1425.) In his argument to the jury, Mejia’s attorney expressly challenged the People’s evidence on the knowledge element. Counsel argued, “That’s the—the receiving stolen property. So they are missing the element. They’re missing that he [Mejia] knew it [the Avalanche] was stolen. [¶] He may have gotten a ride from [alleged coconspirator] Alas. He [Mejia] picked up the vehicle and drove, drove to Alameda Street. And that’s it. Doesn’t show that he knew the vehicle was stolen.” Accordingly, whether Mejia knew that the Avalanche was stolen was a material issue in the case.
Section 496d, subdivision (a) provides in relevant part, “Every person who buys or receives any motor vehicle . . . that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any motor vehicle . . . from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment . . . or a fine . . . or both . . . .”
“The question of whether a defendant had actual knowledge [that property was stolen] is a question of fact to be determined by the fact finder. Since direct evidence of the defendant’s knowledge is rarely available, the knowledge element is routinely proved by circumstantial evidence.” (Levenson & Ricciardulli, California Criminal Law (2008-2009 ed.) § 8:39, p. 503.) Mejia’s constructive possession of another stolen vehicle at or near the time that he drove Brown’s Avalanche was circumstantial evidence that tended to prove that he knew the Avalanche was stolen. It is settled that “[p]ossession of recently stolen property itself raises a strong inference that the possessor knew the property was stolen . . . .” (People v. O’Dell (2007) 153 Cal.App.4th 1569, 1574.) Similarly, a defendant’s possession of other stolen property similar to the property at issue in the case gives rise to a reasonable inference that the defendant knew of the stolen character of the property at issue. (See People v. Harris, supra, 71 Cal.App.3d at pp. 964-965.) “‘“[I]f a person acts similarly in similar situations, he probably harbors the same intent in each instance” [citations], and . . . such prior conduct may be relevant circumstantial evidence of the actor’s most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution. [Citations.]’ [Citation.]” (People v. Miller (2000) 81 Cal.App.4th 1427, 1448.) As noted above, “the doctrine of chances teaches that the more often one does something, the more likely that something was intended, and even premeditated, rather than accidental or spontaneous.” (People v. Steele, supra, 27 Cal.4th at p. 1244.) Just as with the element of intent, the possession of recently stolen property can be relevant to the element of knowledge. The evidence thus was probative of Mejia’s knowledge that Brown’s Avalanche was stolen, and fell within the scope of evidence permitted under Evidence Code section 1101, subdivision (b).
The trial court also did not abuse its discretion in admitting the evidence over Mejia’s Evidence Code section 352 objection. As noted above, section 352 protects against “evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.”’ [Citation.]” (People v. Karis, supra, 46 Cal.3d at p. 638.) The evidence relating to the stolen Ford pickup was relevant and probative on the issue of Mejia’s knowledge—an issue on which, as Mejia’s attorney argued to the jury, there was little other evidence. In contrast, the testimony and other evidence relating to the Ford was not inflammatory and had very little potential to “evoke an emotional bias” against Mejia, and there is no indication in the record that it had such an effect. The trial court could properly conclude that the potential for prejudice was outweighed by the probative value of the evidence.
B. Sufficiency of the Evidence
1. Standard of Review
“In reviewing a criminal conviction challenged as lacking evidentiary support, ‘the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’” (People v. Hillhouse (2002) 27 Cal.4th 469, 496, quoting People v. Johnson (1980) 26 Cal.3d 557, 578.) We “presume[] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court, that must be convinced of the defendant’s guilt beyond a reasonable doubt.” (Id. at pp. 1053-1054.)
2. DeJesus—Count 6—Attempted Grand Theft
DeJesus argues that his conviction for attempted grand theft in count 6 was not supported by substantial evidence. Count 6 related to the attempt in April 2006 to steal Omar Gutierrez’s Chevy Avalanche from Gutierrez’s home on Lyle Avenue in Whittier. (See Background, Parts A.3.a and B.1, ante.) DeJesus argues that (1) none of the police officers identified DeJesus as the driver of the purple Honda at the time of the incident at Gutierrez’s house; and (2) the testimony of Detective Romine, who observed the incident, and Detective Carnakis, who wrote the report concerning the incident, was conflicting with respect to whether the alleged thief got into Gutierrez’s Avalanche or merely stood beside it.
DeJesus’ opening brief erroneously refers to count 7. As clarified in his reply brief, he challenges the sufficiency of the evidence with respect to count 6.
“[An] attempt consists of (1) a specific intent to commit a crime and (2) a direct but ineffectual act done toward its commission. [Citations.] [¶] Theft is the felonious taking, carrying, or driving away of the personal property of another; the crime is grand theft auto when the property taken is an automobile and it is taken with the specific intent to permanently deprive the owner of her property. [Citations.] Accordingly, attempted grand theft auto is a direct but ineffectual act toward the taking or driving away of an automobile with the specific intent to permanently deprive the victim of possession of [the] car.” (People v. Marquez (2007) 152 Cal.App.4th 1064, 1067; see §§ 21a, 484, 487.)
There was substantial evidence identifying DeJesus as the driver of the purple Honda. Approximately two hours before the attempt to steal Gutierrez’s Avalanche, CHP Investigator Maletta and Detective Romine saw the purple Honda in the vicinity of Gutierrez’s and Villar’s homes in Whittier, traveling a route consistent with the route from Gutierrez’s house on Lyle Avenue to Villar’s home on Adele Avenue. The officers saw the Honda turn onto Adele Avenue. Both officers identified DeJesus as the driver of the Honda. Detective Romine testified that there were two people inside the Honda. Two hours later, Detective Romine saw two men in the same Honda, one of which got out of the car and approached Gutierrez’s Avalanche. That man was not DeJesus. Shortly thereafter, Detective Carnakis saw two men in the purple Honda arrive at Villar’s house on Adele Avenue. One of the men got out of the car and attempted to steal Villar’s Tahoe. A reasonable jury could infer from this sequence of events that DeJesus was driving the Honda at the time of the attempted thefts. Furthermore, the jury heard evidence that in March 2006, in nearly identical circumstances, DeJesus had played a similar role—that is, as driver of the transport vehicle—in connection with the theft of Robles’s Escalade. There was thus substantial evidence identifying DeJesus as the driver of the purple Honda at the relevant time.
There also was substantial evidence of the attempted theft. Detective Romine testified that the passenger of the Honda got out, approached Gutierrez’s Avalanche in the driveway and “entered that vehicle.” Detective Romine believed the driver’s side door had opened because “the dome light turned on in the cab.” The man sat in the Avalanche for “a brief period of time,” then went to speak to the person driving the Honda. He went back to the Avalanche, “appeared to get in it,” then again left the Avalanche to speak to the driver of the Honda. The man then “returned to the vehicle one more time” before again returning to the Honda and driving away. Detective Romine testified that the man “[d]efinitely [got in] the driver’s side.” On cross-examination, defense counsel asked Detective Romine, “What you saw is [the man] open the door and get inside the vehicle and the light go on, correct?” Detective Romine answered unequivocally, “Correct.” Detective Romine’s testimony—particularly when coupled with evidence that DeJesus and his passenger had reconnoitered the area earlier, and minutes thereafter attempted to steal Villar’s Tahoe—constituted substantial evidence of the attempted theft of Gutierrez’s Avalanche.
DeJesus points out that the report of Detective Romine’s observations authored by Detective Carnakis reported that the suspect had walked up to the driver’s side of the vehicle three times, but did not state that the suspect had entered the vehicle. The reported stated that the suspect might have been concerned that the lights were on in Gutierrez’s garage, and that “it is also possible that the key the suspect had did not work in the door.” Detective Carnakis testified that, when he discussed the incident with Detective Romine, Detective Romine “believed that [the suspect] did not get into the car.”
The inconsistencies between the testimony of Detective Romine and the police report, however, do not establish as a matter of law that the evidence was insufficient. The jury was entitled to credit Detective Romine’s testimony over the purported inconsistent statements in the report. Detective Romine testified concerning his direct recollection, whereas the statements in the report were Detective Carnakis’s hearsay account of Detective Romine’s observation. Detective Romine testified that he did not recall telling Detective Carnakis that the suspect’s key did not work in the door of the Avalanche, and that when he testified that the man had gotten into the car he was testifying to “what [he] saw.” “Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] [An appellate court] resolve[s] neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 403; accord, People v. Hovarter (2008) 44 Cal.4th 983, 1016.) A reasonable jury could have concluded that any inconsistent statements in the report resulted from a miscommunication or misunderstanding between Detectives Romine and Carnakis, or that Detective Romine’s account of what occurred was the more credible of the two.
Moreover, as an alternative basis for affirming DeJesus’ conviction on count 6, DeJesus cites no authority holding that, to prove an attempted auto theft, the People must prove that the prospective thief actually entered the target vehicle. As noted above, section 27a requires only proof of the defendant’s intent to commit the target crime and a direct but ineffectual act toward committing that crime. (People v. Marquez, supra, 152 Cal.App.4th at p. 1067.) Commission of an element of the crime is not required. (People v. Medina (2007) 41 Cal.4th 685, 694.) The overt act need only show that the perpetrator is “putting his or her plan into action; it need not be the last proximate or ultimate step toward commission of the crime or crimes.” (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8; People v. Tillotson (2007) 157 Cal.App.4th 517, 535.) When intent is clearly shown, “‘slight acts in furtherance of the design will constitute an attempt’” (People v. Superior Court, supra, 41 Cal.4th at p. 8), even though the same act would not suffice if intent was not as clearly shown. (People v. Anzalone (2006) 141 Cal.App.4th 380, 387.)
In this case, there was substantial circumstantial evidence that DeJesus and his unknown accomplice intended to steal Gutierrez’s Avalanche, both from the events of the night in question—including evidence of their reconnaissance of the scene earlier in the evening and their subsequent attempt to steal Villar’s Tahoe—and from the similarity between the attempted theft of Gutierrez’s Avalanche and other crimes connected to the overall conspiracy. Even if we were to assume, contrary to the testimony of Detective Romine, that DeJesus’ accomplice did not get into the Avalanche, his attempt to do so was a sufficient direct act toward committing the theft, even if that attempt was ineffectual. Substantial evidence thus supported DeJesus’ conviction on count 6.
3. Mejia—Count 1—Conspiracy
Mejia argues that the evidence was insufficient to sustain his conviction on the conspiracy charged in count 1. To prove a conspiracy, the People must present evidence “‘that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act “by one or more of the parties to such agreement” in furtherance of the conspiracy.’ [Citations.]” (People v. Jurado (2006) 38 Cal.4th 72, 120; People v. Bogan (2007) 152 Cal.App.4th 1070, 1074; see §§ 182, subd. (a)(1); 184; see also People v. Vu (2006) 143 Cal.App.4th 1009, 1024 [elements of conspiracy are “(1) an agreement between two or more people, (2) who have the specific intent to agree or conspire to commit an offense, (3) the specific intent to commit that offense, and (4) an overt act committed by one or more of the parties to the agreement for the purpose of carrying out the object of the conspiracy”]; 1 Witkin, California Criminal Law (3d ed. 2000), Elements, § 68, p. 277.) These facts may be established through circumstantial evidence (People v. Longines (1995) 34 Cal.App.4th 621, 626), and they may “‘be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy. [Citations.]’” (People v. Rodrigues, supra, 8 Cal.4th at p. 1135.) “The conspiracy must be inferred by the trier of fact from all the circumstances that are proven, and if the inference is a reasonable one it will not be disturbed on appeal.” (People v. Chavez (1962) 208 Cal.App.2d 248, 253.) “While ‘mere association’ cannot establish a conspiracy, ‘[w]here there is some evidence of participation or interest in the commission of the offense, it, when taken with evidence of association, may support an inference of a conspiracy to commit the offense.’ [Citation.]” (People v. Prevost (1998) 60 Cal.App.4th 1382, 1400.)
Mejia does not challenge the sufficiency of the evidence establishing the existence of the conspiracy, and the record contains ample evidence of such a conspiracy. Instead, Mejia argues that the evidence shows that he was not involved in the events alleged in the indictment until May 30, 2006, when he was picked up by Victor Alas at the Wilshire Inn and later drove Maricela Brown’s green Avalanche. This, Mejia contends, was near the end of the conspiracy, which allegedly ended on June 20, 2006, and after the overt acts alleged in the indictment, which occurred between May 2 and May 9, 2006. Mejia asserts that there was thus no evidence that he “knowingly joined this ongoing conspiracy.” We disagree.
To be liable as a conspirator, a defendant need not be one of the original conspirators (In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1000; see Levenson & Ricciardulli, supra, § 12:5, pp. 759-760), nor need he know the scope of the conspiracy (People v. Means (1960) 179 Cal.App.2d 72, 80) or the identity of all the other conspirators. (People v. Van Eyk (1961) 56 Cal.2d 471, 479.) The crime of conspiracy can be committed whether the conspirators acted together or in separate groups, or whether they used the same or different means known or unknown to some of them, but leading to the same unlawful result. (People v. Cooks (1983) 141 Cal.App.3d 224, 312; People v. Olf (1961) 195 Cal.App.2d 97, 105; People v. Brown (1960) 184 Cal.App.2d 588, 597.) One who associates with a preexisting conspiracy with knowledge of the conspiracy and who performs overt acts in furtherance of the conspiracy’s unlawful purpose is liable as a conspirator. (In re Nathaniel C., supra, 228 Cal.App.3d at p. 1000; accord, People v. Cornell (1961) 188 Cal.App.2d 668, 675.) Accordingly, it is of no importance that Mejia might have become involved in the conspiracy only shortly before it ended if there was sufficient evidence that he agreed to the conspiracy’s unlawful purpose.
To prove Mejia’s agreement, it was “not necessary to establish the parties met and expressly agreed; rather, ‘a criminal conspiracy may be shown by direct or circumstantial evidence that the parties positively or tacitly came to a mutual understanding to accomplish the act and unlawful design.’ [Citation.]” (People v. Vu (2006) 143 Cal.App.4th 1009, 1025.) “The agreement in a conspiracy may be shown by circumstantial evidence, including the conduct of the defendants in mutually carrying out an activity which constitutes a crime.” (People v. Consuegra (1994) 26 Cal.App.4th 1726, 1734; accord, People v. Gonzalez (2004) 116 Cal.App.4th 1405, 1417; People v. Herrera (1999) 70 Cal.App.4th 1456, 1464.)
The evidence in this case was sufficient to permit a reasonable jury to infer that Mejia agreed to the conspiracy’s unlawful purpose. The evidence established that on May 30, 2006 Mejia was picked up from the Wilshire Inn by Victor Alas. Alas was driving a blue van registered to Hernandez, a conspirator. The blue van had been observed by police in connection with four other stolen vehicles and previously had been impounded by police from a location on West Howard Street where a stolen vehicle was being VIN switched.
Police observed Mejia ride with Alas into a neighborhood in central Los Angeles, from which Mejia emerged driving Maricela Brown’s stolen green Avalanche. The blue van and the green Avalanche appeared to be driving in concert, and stopped together at a gas station. This was consistent with the conspiracy’s method of operation, in which two men drove in one car to the location of a target vehicle to be stolen or of a previously stolen vehicle that had been parked and was to be moved. One man then drove the stolen vehicle to a new location while the other man followed.
Police followed the Avalanche to an auto glass shop on Alameda. The blue van was seen nearby. When the Avalanche emerged from the auto glass shop after approximately 45 minutes, its license plates, windshield and VIN plate had been replaced. The next day, Mejia was detained by police. He was in possession of tools that could be used to remove dashboard VIN plates. One of the drill bits in Mejia’s possession had pieces of metal stuck to it that proved to be rosette rivets, which are used to affix VIN plates to the dashboard of GM vehicles. Based on the foregoing evidence, a reasonable jury could conclude that Mejia joined an ongoing conspiracy to steal and VIN switch GM vehicles by, in concert with Alas, driving a stolen Avalanche to a location where its VIN and license plates were changed.
Mejia argues that, although there was evidence that Mejia was driving Maricela Brown’s Avalanche in the vicinity of Washington and Arlington, there is no evidence that he drove it to the auto glass shop on Alameda because none of the officers testified to seeing him there. Officer Michelson testified, however, that he saw Mejia driving the Avalanche after it left the gas station, after which the Avalanche got on the eastbound 10 freeway. Both Officer Michelson and Detective Molina followed the Avalanche on the freeway to the glass shop on Alameda. A reasonable jury could infer that Mejia drove the vehicle to the glass shop. There was sufficient evidence supporting Mejia’s conspiracy conviction.
4. Hernandez—Counts 1 and 13
Hernandez argues that the evidence was insufficient to support his convictions on count 1 for conspiracy and count 13 for unlawful VIN activity. Hernandez was identified by Officer Michelson as one of three men that Officer Michelson observed VIN switching a white Chevy Crew Cab pickup truck at a house on Navarro Avenue in Pasadena on April 13, 2006. Hernandez argues that Officer Michelson’s identification was unreliable because Officer Michelson observed Hernandez from 45 feet away through the slats of a wooden fence; Officer Michelson had not seen Hernandez prior to that time, and he initially identified Hernandez sometime later when shown a single photograph of Hernandez by Detective Starbird; and Officer Michelson had misidentified Mario Hernandez as his brother Hector Hernandez in grand jury testimony, which Hernandez argues demonstrated that Officer Michelson “had difficulty with cross racial identification.”
The points raised by Hernandez were valid points for cross examination of Officer Michelson and for argument to the jury, and defense counsel for Hernandez used both means to question Officer Michelson’s identification at trial. They do not establish as a matter of law, however, that Officer Michelson’s identification was “‘so inherently incredible, so contrary to the teachings of basic human experience, so completely at odds with ordinary common sense, that no reasonable person would believe it beyond a reasonable doubt.’ [Citation.]” (People v. Hovarter, supra, 44 Cal.4th at p. 996.) As the California Supreme Court recently explained, “At trial, ‘it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends.’ [Citation.] On appeal, an appellate court deciding whether sufficient evidence supports a verdict must determine whether the record contains substantial evidence—which we repeatedly have described as evidence that is reasonable, credible, and of solid value—from which a reasonable jury could find the accused guilty beyond a reasonable doubt. [Citation.] ‘In evaluating the sufficiency of evidence, “the relevant question on appeal is not whether we are convinced beyond a reasonable doubt” [citation], but “whether ‘“any rational trier of fact”’ could have been so persuaded.”’ [Citation.]” (Id. at pp. 996-997.)
A rational trier of fact could have found Officer Michelson’s identification of Hernandez credible. Officer Michelson related in detail the sequence of events that occurred in the yard on Navarro Avenue; he recalled the specific address at which the events occurred; he recalled the times that particular events occurred; he specified the particular actions taken by the three men who were VIN switching the pickup; and he recalled the colors, makes and/or models of three different vehicles present at the scene. He identified Hernandez in open court; he described for the jury the clothing that Hernandez was wearing on the day in question; he recalled that Hernandez carried a small black canvas tool bag; and he recalled that Hernandez had a small ponytail (which Hernandez admitted). Officer Michelson showed the jury on aerial photographs of the scene where he was when he made his observations, and described the distance from and conditions under which he made those observations. As Hernandez concedes, the jury was properly instructed on the factors to consider in assessing Officer Michelson’s credibility. Accordingly, even if we assume that Officer Michelson’s identification of Hernandez was necessary to the prosecution’s case, a rational jury could have accepted Officer Michelson’s testimony.
Moreover, there was significant other evidence tying Hernandez to the conspiracy. Such evidence included observations of Hernandez’s blue Dodge Caravan being used by conspirators or in close proximity of the conspiracy’s activities; the tools and paper dealer plates recovered by Detective Clifford in the search of Hernandez’s home; the proximity of Hernandez’s home to the conspiracy’s activities on both Eucalyptus Lane and Raymond Street; and the identification of Hernandez by both Officer Pimental and Sergeant Brame as the person driving Gilcrease’s stolen gold pickup. Substantial evidence supported Hernandez’s convictions.
C. The Upper Term Sentences
1. No Reversible Error Due to the Trial Court’s Sentencing Procedure
The crimes of which defendants were convicted were committed no later than June 2006. In January 2007, the United States Supreme Court rendered its decision in Cunningham v. California (2007) 549 U.S. 270 (Cunningham), holding California’s determinate sentencing law (DSL) unconstitutional insofar as it denied a defendant the right to a jury trial on aggravating factors relied upon to impose an upper term sentence of imprisonment.
In March 2007, the California Legislature passed Senate Bill 40 (SB 40) (Stats. 2007, ch. 3) as urgency legislation intended to bring the DSL into compliance with the requirements of Cunningham, supra, 549 U.S. 270 . SB 40 amended section 1170, subdivision (b) to provide that “[w]hen a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . In determining the appropriate term, the court may consider the record in the case, the probation officer’s report, other reports . . . and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim . . . and any further evidence introduced at the sentencing hearing. The court shall select the term which, in the court's discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected . . . .” (§ 1170, subd. (b).) SB 40 thus made three basic changes to the procedure for imposing a determinate term of imprisonment: (1) the middle term was no longer the presumptive term in the absence of aggravating or mitigating circumstances; (2) the trial court was given broad discretion to impose the lower, middle or upper term, based upon which best served the interests of justice; and (3) the trial court was required to set forth reasons for imposing the chosen sentence, but it was not required to make findings of fact to justify the sentence chosen. (People v. Wilson (2008) 164 Cal.App.4th 988, 992; see also People v. Sandoval (2007) 41 Cal.4th 825, 844-845 (Sandoval).)
Section 1170, subdivision (b) has been further amended. The new text will become operative on January 1, 2009. (Stats. 2007, ch. 740, § 2.)
Defendants were sentenced on May 11 and 16, 2007. SB 40 was thus enacted after defendants committed their crimes, but before they were sentenced. The trial court determined that SB 40 should apply to the sentencing procedure, and concluded that employing the sentencing procedure prescribed by SB 40 did not violate the constitutional proscriptions against ex post facto laws because SB 40 did “not change punishment but merely the way the court selects the appropriate sentence.” The trial court then imposed an upper base term on each of defendants, stating as its reason that defendants were part of a “sophisticated criminal conspiracy to steal expensive automobiles and to change their V.I.N. numbers for the obvious [purpose] of reselling the cars,” and which “involved in excess of 70 expensive automobiles.” The trial court found no factors in mitigation.
Defendants argue that the trial court erred by applying SB 40 retroactively, and that application of SB 40 in this case to impose upper term sentences violated the constitutional proscriptions against ex post facto laws. (U.S. Const., art. 1, § 10, cl. 1; Cal. Const., art. I, § 9.) The prejudice defendants assert is that they were denied their rights to a jury trial under Cunningham, supra, 549 U.S. 270, on the aggravating facts relied upon by the trial court to impose the upper term sentences.
Shortly after defendants were sentenced, two additional developments occurred with respect to the DSL. Effective May 23, 2007, the Judicial Council revised the sentencing rules in the California Rules of Court to reflect the statutory changes effected by SB 40. (Cal. Rules of Court, rules 4.406, 4.420, 4.421, 4.423.) The revised rule 4.420(b) provides, “In exercising his or her discretion in selecting one of the three authorized prison terms . . . the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision.” The “reasons for selecting one of the three authorized prison terms . . . must be stated orally on the record” in simple language. (Rule 4.420(e).) The Judicial Council redefined circumstances in aggravation and mitigation to include “factors” rather than “facts” relating to the crime and to the defendant. (Rules 4.421, 4.423.) Unlike the prior Rule 4.420(b), the revised rule does not require that circumstances in aggravation or mitigation be established by a preponderance of the evidence, nor does it require the trial court to weigh circumstances in aggravation against those in mitigation. (Rule 4.420(b).)
All rule references are to the California Rules of Court.
On July 19, 2007, the California Supreme Court rendered its decision in Sandoval, supra, 41 Cal.4th 825. The Supreme Court stated that it was “arguable that the amendments to the DSL should be viewed as [changes in procedural law] and that they are, therefore, applicable to any sentencing proceedings conducted after the effective date of those amendments.” (Id. at p. 845.) However, the Supreme Court declined to decide that question, and instead invoked its discretionary power to modify California’s procedural sentencing laws to conform to the procedures implemented by the Legislature in SB 40. (Id. at pp. 845-846.) In so doing, the court held that application of the procedural terms of SB 40 to resentencing procedures for crimes committed before its passage did not violate either the proscription against ex post facto laws or a defendant’s right to due process. (Id. at pp. 855-857.) The Supreme Court “conclude[d] that the federal Constitution does not prohibit the application of the revised sentencing process . . . to defendants whose crimes were committed prior to the date of our decision in the present case.” (Id. at p. 857.)
Because this case involves defendants’ original sentencing proceedings rather than resentencing proceedings, it falls outside the scope of the precise holding in Sandoval. (See Sandoval, supra, 41 Cal.4th at p. 845 [noting that its holding “might be characterized as a limited reformation of the statute with regard to its application in resentencing proceedings”].) Nevertheless, even if we were to conclude that the trial court committed reversible error by imposing upper term sentences, the remedy would be to remand for resentencing under Sandoval and not, as defendants contend, a remand with instructions to impose the middle term. (Id. at p. 849.) In other words, defendants’ remedy for error by the trial court in sentencing defendants under the procedures set forth in SB 40 would be a new sentencing hearing under the identical procedures, as prescribed by the court in Sandoval. There is no indication in the record that the result of a resentencing proceeding would be any different. We will not reverse for further proceedings when to do so would be “a useless and futile act and would be of no benefit to appellant.” (People v. Seldomridge (1984) 154 Cal.App.3d 362, 365; see also McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 121 [no reversal when requested remedy ineffective]; Charles H. Duell, Inc. v. Metro-Goldwyn-Mayer Corp. (1932) 128 Cal.App. 376, 385 [“it remains a rule of appellate procedure that a reviewing court will not remand a case where further proceedings therein would be futile”].)
Even if we were to assume the trial court applied the wrong sentencing procedure and committed error under Cunningham, supra, 549 U.S. 270, any such error was harmless beyond a reasonable doubt. (People v. Wilson (2008) 44 Cal.4th 758, 812; Sandoval, supra, 41 Cal.4th at p. 838; Chapman v. California (1967) 386 U.S. 18, 24.) Cunningham error may be harmless “if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury . . . .” (Sandoval, supra, 41 Cal.4th at p. 839.) The trial court relied in this case upon the aggravating circumstance that “the manner in which the crime was carried out indicate[d] planning, sophistication, or professionalism.” (Rule 4.421(a)(8).) The jury’s verdicts establish that the jury was convinced beyond a reasonable doubt that defendants were part of a sustained and sophisticated conspiracy to steal and VIN switch automobiles over a large area of Southern California that involved advanced planning both in the targeting and disposition of the vehicles stolen. We are convinced beyond a reasonable doubt that the jury would have found the aggravating circumstance to be true had it been submitted to the jury.
2. No Abuse of Discretion
Defendants contend that, even if there was no constitutional error, the trial court abused its discretion in imposing upper term sentences. “In reviewing [a trial court’s sentencing choice] for abuse of discretion, we are guided by two fundamental precepts. First, ‘“[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citations.] Second, a ‘“decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’” ’ [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 376-377.) The conclusion that if there were error, it was harmless beyond a reasonable doubt, suggests that the imposition of the sentences were not an abuse of discretion.
a. Hernandez
Hernandez argues first that the trial court abused its discretion because his participation was “relatively minor” and “not sophisticated.” The record, however, does not support Hernandez’s characterization of his criminal activity. The jury found beyond a reasonable doubt that Hernandez was part of a sophisticated criminal enterprise, and the evidence established that Hernandez played a substantial part in that enterprise. That he might not have been the mastermind orchestrating the conspiracy’s activities does not mean his role was minor or unsophisticated.
Hernandez next contends that the trial court improperly relied upon the sophisticated nature of the conspiracy both to support imposition of the upper term and its decision to impose a consecutive sentence on his conspiracy conviction. Hernandez did not object on this basis at sentencing, and therefore forfeited this contention. (People v. Scott (1994) 9 Cal.4th 331, 355.) In any event, the record does not support Hernandez’s contention. In imposing the consecutive sentence for conspiracy, the trial court did not mention the conspiracy’s sophistication. Rather, the trial court relied on the fact that the substantive crime of unlawful VIN activity in count 13 and the crime of conspiracy in count 1 were separate crimes and were “different in nature.” This was a valid factor supporting the imposition of a consecutive sentence. (Rule 4.425(a)(3).) Only a single valid factor is required. (People v. Osband (1996) 13 Cal.4th 622, 728-729.)
Hernandez also argues that the trial court failed to consider that he had no prior criminal record as a mitigating factor. Again, the record does not support Hernandez’s contention. The fact that Hernandez had no prior record was cited in his probation report and was brought to the trial court’s attention by defense counsel during the sentencing hearing. The trial court was thus aware that Hernandez had no prior record, and we presume the trial court considered that fact. (People v. Weaver (2007) 149 Cal.App.4th 1301, 1318.) We read the trial court’s statement that it found “no mitigating circumstances” not to mean that it did not consider mitigating circumstances, but that it found no mitigating circumstances sufficient to warrant a more lenient sentence. Hernandez has failed to establish an abuse of discretion.
b. DeJesus
DeJesus also argues that the trial court erred because it improperly relied upon the sophisticated nature of the conspiracy to support both imposition of the upper term and its decision to impose a consecutive sentence on his conspiracy conviction. DeJesus also did not object on this basis at sentencing, and therefore forfeited this contention. (People v. Scott, supra, 9 Cal.4th at p. 355.) In any event, the record does not support DeJesus’ contention. As with Hernandez, the trial court imposed a consecutive sentence on the conspiracy count based on the circumstance that the conspiracy was “far ranging in scope and involved separate intents . . . .” This was a valid factor supporting the imposition of a consecutive sentence. (Rule 4.425(a)(3).) Although the trial court referred to the “very sophisticated criminal activity” when imposing sentence on DeJesus on the conspiracy count, it did so in the context of explaining why a separate sentence on the conspiracy count did not violate section 654. The trial court did not state it was imposing a consecutive sentence because the manner in which the crimes were carried out indicated planning, sophistication, or professionalism. (Rule 4.421(a)(8).)
DeJesus also argues that the trial court erred because it relied on his prior conviction for receiving a stolen vehicle (§ 496d) both to sentence him as a repeat offender under section 666.5 and to impose the upper term sentence. DeJesus did not object on this basis at sentencing, and therefore forfeited this contention. (People v. Scott, supra, 9 Cal.4th at p. 355.) In any event, we conclude that DeJesus has failed to establish reversible error. When announcing its tentative sentence, the trial court relied solely upon the sophisticated nature of the conspiracy to support imposing an upper term sentence on count 14. Defense counsel did not challenge the trial court’s tentative decision to impose an upper term sentence on count 14, but instead argued only that the sentences on counts 14 and 15 had to be concurrent because both crimes involved the same victim. When the trial court actually imposed sentence on count 14, it relied on “the aggravating circumstances” that “this case involved a very sophisticated criminal activity” and that, because “[DeJesus] had [a] prior conviction for similar activity, it’s clear to the court that he’s a committed car thief and that this was an escalation of criminal involvement . . . .” The trial court expressly found no mitigating circumstances.
Under section 489, grand theft auto is punishable by sentences of 16 months, two years or three years. Under section 666.5, subdivision (a), a repeat offender committing the same crime is punishable by sentences of two, three or four years and/or a $10,000 fine.
Even if the trial court erred by referring to DeJesus’ prior conviction, the record establishes that the trial court viewed the sophisticated nature of the conspiracy as a sufficient and independent basis to impose an upper term sentence. That was the sole basis relied upon by the trial court when announcing its tentative sentence with respect to DeJesus, and it was the sole basis relied upon by the trial court in imposing upper term sentences on both Hernandez and Mejia. Furthermore, when sentencing codefendant Ayala, the trial court remarked, “I am outraged by the remarkable sophistication of the criminal conspiracy in this case and that is why I am intent on imposing maximum sentences on the defendants who come before me.” The trial court found no mitigating factors. Moreover, DeJesus was still on probation for his prior conviction when he committed the crimes in this case. (Rule 4.421(b)(4).) “‘When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.’” (People v. Cruz (1995) 38 Cal.App.4th 427, 433-434.) The record in this case “makes plain that a remand [for resentencing] would not benefit defendant.” (People v. Reed (1984) 157 Cal.App.3d 489, 493.)
c. Mejia
Mejia joins the other defendants in arguing that the trial court erred because it improperly relied upon the sophisticated nature of the conspiracy to support both imposition of the upper term and its decision to impose a consecutive sentence on the conspiracy count. As the other defendants, Mejia did not object on this basis at sentencing, and therefore forfeited this contention. (People v. Scott, supra, 9 Cal.4th at p. 355.) In any event, the record does not support Mejia’s contention. As with Hernandez and DeJesus, the trial court imposed the upper term based on the sophisticated nature of the conspiracy, but imposed a consecutive sentence on the conspiracy count based on the circumstance that the conspiracy “involved separate intents and objectives.” This was a valid factor supporting the imposition of a consecutive sentence. (Rule 4.425(a)(3).)
To the extent Mejia challenges the sufficiency of the evidence to support the conclusion that his criminal conduct indicated planning, sophistication, or professionalism (Rule 4.421(a)(8)), we have already concluded that the evidence was sufficient to sustain Mejia’s conviction on the conspiracy count (see Discussion, Part B.3, ante) and that a jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found that aggravating circumstance to be true. (See Discussion, Part C.1, ante.) Mejia has failed to demonstrate reversible error.
D. Other Sentencing Issues
1. DeJesus—Section 654
DeJesus contends that the trial court violated section 654 by imposing punishment on both counts 14 and 15. On count 14, the jury convicted DeJesus of grand theft auto. On count 15, the jury convicted DeJesus of unlawful VIN activity. Both counts relate to Joel Robles’s stolen Cadillac Escalade. DeJesus argues that “both [crimes] were the result of one criminal objective, that is, to resell the vehicle with a clean title masking the fact that it was stolen.”
Section 654, subdivision (a) provides in relevant part, “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
“The test for determining whether section 654 prohibits multiple punishment has long been established: ‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ [Citation.]” (People v. Britt (2004) 32 Cal.4th 944, 951-952.) “If, on the other hand, defendant harbored ‘multiple criminal objectives,’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ [Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.) Whether a defendant held multiple criminal objectives is a question of fact, which we review for substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730; People v. Andra (2007) 156 Cal.App.4th 638, 640.)
The theft of Robles’s vehicle occurred on March 15, 2006 from Robles’s home on Van Ness Avenue. The unlawful VIN activity occurred on March 22, 2006 at a location several miles away, on Croesus Avenue. The trial court found that “Mr. De Jesus [sic] was involved in the theft of a car, he obtained possession of the car. Days later, he then engaged in taking the theft to an entirely different level. He had access to the car, he could have used the car once it was stolen. . . . But here, there was a separate objective of hiding the car more thoroughly, so that it could be resold . . . . [¶] Not only did these individuals steal cars, but they then modified them by changing their VIN number so that they could be sold [to] unwitting and unsuspecting persons in the community. And it’s the court’s view that the crimes of grand theft auto involves a different intent from the crime of changing a vehicle identification number, that the changing of a vehicle identification number is not necessary to either stealing a vehicle or taking possession of it, and that it does involve heightened criminal sophistication, and I think that it’s worthy of consecutive sentences.”
Substantial evidence supports the trial court’s conclusion. The objective of DeJesus in stealing Robles’s Escalade was to obtain possession of the vehicle. That crime was completed on March 15, 2006. The objective of DeJesus in VIN switching the vehicle on March 22, 2006 was not to gain its possession, but to conceal its stolen nature to facilitate its resale. To gain possession of the vehicle, on the one hand, and to conceal its stolen nature, on the other hand, are distinct criminal objectives. (See People v. Andra, supra, 156 Cal.App.4th at pp. 640-641 [punishment for both vehicle theft and identity theft not barred by § 654 even though purpose of identity theft was to facilitate vehicle theft two weeks later]); People v. Kwok (1998) 63 Cal.App.4th 1236, 1253-1256 [separate punishment for two burglaries not barred by § 654 even though first burglary was committed to facilitate subsequent crimes]; People v. Nichols (1994) 29 Cal.App.4th 1651, 1657-1658 [kidnapping and robbery of victim to hijack truck, on the one hand, and dissuading and intimidating a witness to avoid detection, on the other hand, were distinct criminal objectives].)
That both crimes were part of the same overall scheme—to obtain money by selling Robles’s stolen Escalade—does not necessarily mean that section 654 bars punishment for both crimes. “‘Under section 654, “a course of conduct divisible in time, although directed to one objective, may give rise to multiple violations and punishment. [Citations.]” [Citations.] This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken. [Citation.]’ [Citation.]” (People v. Andra, supra, 156 Cal.App.4th at p. 640; accord, People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11; People v. Gaio (2000) 81 Cal.App.4th 919, 935; People v. Kwok, supra, 63 Cal.App.4th at pp. 1253-1254.) DeJesus had a week between the two crimes to reflect and reconsider his course of action. The trial court did not err in imposing separate punishments for counts 14 and 15.
2. Fines
Hernandez and Mejia argue, and the People agree, that the trial court erred by imposing restitution fines of $25,000. Section 1202.4 requires the trial court “[i]n every case where a person is convicted of a crime” to “impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.” (§ 1202.4, subd. (b).) The amount of the fine “shall be set at the discretion of the court and commensurate with the seriousness of the offense, but shall not be less than two hundred dollars ($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a felony . . . .” (§ 1202.4, subd. (b)(1).) The trial court is also required to “assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4.” (§ 1202.45.)
There is some ambiguity in the record whether the trial court intended to impose the $25,000 fines as restitution fines pursuant to section 1202.4, or as penal fines for Hernandez’s and Mejia’s convictions for unlawful VIN activity under Vehicle Code section 10802. Section 10802 provides that a felony conviction shall be punished by a term of imprisonment “or by a fine of not more than twenty-five thousand dollars ($25,000), or by both the fine and imprisonment . . . .” When sentencing Hernandez, the trial court stated that it was “imposing the maximum fine of $25,000,” which it believed “appropriate given the aggravating and frankly egregious nature of the criminal acts . . . in this case.” The trial court did not refer to the fine as a restitution fine, and from the context it appears the trial court intended to impose a penal fine as part of Hernandez’s sentence. The trial court also stated, however, that “[t]here will be a parole revocation fine in the same amount to be stayed . . . .” This supports the interpretation that the trial court imposed the $25,000 fine as a restitution fine because the parole revocation restitution fine imposed under section 1202.45 must be in the same amount as the restitution fine imposed under section 1202.4, and because the trial court did not otherwise impose a restitution fine or make findings that no such fine should be imposed. The trial court made similarly ambiguous statements when sentencing Mejia.
The trial court’s minute orders state that the $25,000 fines were imposed as restitution fines pursuant to section 1202.4, subdivision (b). The minute orders also state, however, that the parole revocation restitution fines imposed pursuant to section 1202.45 were in the amount of $200, which is inconsistent with the trial court’s oral pronouncements. The abstracts of judgment are consistent with the minute orders.
The most reasonable interpretation of the trial court’s pronouncement of judgment is that, inadvertently perhaps, the trial court imposed the $25,000 fines as restitution fines pursuant to section 1202.4 rather than as penal fines pursuant to Vehicle Code section 10802. The restitution fines were thus unauthorized because they exceeded the statutory maximum of $10,000. We will modify the judgments to reduce the restitution fines to $10,000. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534.)
The parole revocation restitution fines reflected in the abstracts of judgment also must be modified. As noted above, section 1202.45 requires that parole revocation restitution fines be imposed in an amount equal to the restitution fines. The parole revocation restitution fines imposed by the trial court in its oral pronouncement were to be “in the same amount” as the restitution fines. “Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.” (People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3; accord, People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) The abstracts of judgment must be modified to reflect parole revocation restitution fines in the amount of $10,000.
Finally, the trial court imposed one $20 court security fee pursuant to section 1465.8, subdivision (a)(1) on each defendant. The trial court should have imposed one $20 court security fee for each of defendants’ convictions. (People v. Walz, supra, 160 Cal.App.4th at p. 1372.) The judgments will be modified to impose five such fees with respect to DeJesus; three such fees with respect to Mejia; and two such fees with respect to Hernandez.
3. Presentence Credit
Mejia argues and the People agree that the abstract of judgment with respect to him incorrectly reflects the amount of presentence credit. The trial court gave Mejia 517 days of presentence credit, consisting of 345 days of actual custody and 172 days of conduct credit. The abstract of judgment will be corrected accordingly.
DeJesus argues and the People agree that the trial court miscalculated DeJesus’ presentence credit. DeJesus was given 494 days of presentence credit, consisting of 330 days of actual custody and 164 days of conduct credit. In fact, DeJesus was in custody for 331 days, and was entitled to 164 days of conduct credit, for total presentence credit of 495 days. His abstract of judgment also will be corrected accordingly.
DISPOSITION
The judgment with respect to DeJesus is modified to reflect that he is subject to five court security fees of $20 each pursuant to section 1465.8, subdivision (a)(1), for a total of $100, and that he is entitled to 495 days of presentence credit, consisting of 331 days of actual custody and 164 days of conduct credit. The judgment with respect to Mejia is modified to reduce the restitution fine pursuant to section 1202.4 to $10,000; to reflect that the parole revocation restitution fine imposed pursuant to section 1202.45 is in the amount of $10,000; to reflect that he is subject to three court security fees of $20 each pursuant to section 1465.8, subdivision (a)(1), for a total of $60; and to reflect that he is entitled to 517 days of presentence credit, consisting of 345 days of actual custody and 172 days of conduct credit. The judgment with respect to Hernandez is modified to reduce the restitution fine pursuant to section 1202.4 to $10,000; to reflect that the parole revocation restitution fine imposed pursuant to section 1202.45 is in the amount of $10,000; and to reflect that he is subject to two court security fees of $20 each pursuant to section 1465.8, subdivision (a)(1), for a total of $40. Upon issuance of the remittitur, the superior court clerk shall forward amended abstracts of judgment to the Department of Corrections and Rehabilitation. The judgments are affirmed as modified.
We concur: TURNER, P. J., KRIEGLER, J.
“(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.
“(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.
“(c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.”